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Safety agency probes data breach amid complaints about muzzling disclosure of hazards

The Consumer Product Safety Commission is struggling to contain the fallout from a data breach involving thousands of companies, highlighting the tension between the agency’s mandate to protect consumers and to prevent reputational damage to product makers.

In a letter to key senators, the commission’s acting Chairman Ann Marie Buerkle said officials had directed 29 people – including journalists, lawyers, engineers and company officials – to destroy or return records that the agency had  improperly released to them. According to the April 29 letter, agency lawyers had conferred with the Justice Department about “the handling of recipients who refuse to destroy or return the information.”

CPSC spokesman Joseph Martyak told FairWarning that “less than a handful” of recipients had not complied with the order to destroy the records. He said the unauthorized disclosures involved more than 11,000 companies, but declined to elaborate on the nature of the information or how so many firms could be affected. The Buerkle letter said some consumer information, “in the form of street addresses, ages, race and gender,” had also been disclosed.

The agency’s inspector general is investigating the circumstances surrounding the release, which one commissioner described as resulting from an “innocent mistake” by staff members. In late May, following sharp debate, the CPSC’s five commissioners voted 3-2 to reject a proposal to seek an independent probe of the unauthorized disclosures by the FBI or Justice Department.

Nancy Cowles, executive director of the consumer group Kids In Danger, described the situation as “crazy” because the information the commission is fighting to get back “would be public in any other agency.”

The CPSC faces strict rules on handling information that do not exist for other regulatory agencies. Under a provision known as 6(b), for a section of the Consumer Product Safety Act, the agency can’t give information to the public about specific manufacturers or products without first letting companies comment on whether the disclosure would be accurate and fair. Otherwise, companies can sue to block the release.

The agency’s investigation involves records that were provided without first being vetted under this procedure.

Consumer advocates and some agency commissioners have long condemned the rule as harmful to the public, saying it has caused the commission to delay or water down recalls and warnings about defective products.

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For many years, industries have “threatened to go to court over the wording of press releases, over exact adjectives used to describe an infant death,” said Jason Levine, a former a senior staff member at the CPSC who now heads the nonprofit Center for Auto Safety.

At a House oversight hearing in April, CPSC commissioner Elliot Kaye stated bluntly: “People die because of 6(b). It is as simple as that.”

The unauthorized disclosures came to light as a result of a Consumer Reports expose on the deaths of more than 30 infants linked to the Fisher-Price Rock-‘n Play Sleeper. The publication learned of many of the deaths through records accidentally provided by the CPSC. That led the agency to discover that it had also made improper disclosures to 28 other people.

Consumer Reports spokesman David Butler said when the publication “uncovers information that is important to people’s safety – especially when it involves products that presents potentially fatal hazards – it is our duty to bring it to light.” In an email to FairWarning, he said that when Consumer Reports questioned the CPSC about the infant deaths, the agency said the disclosure of the information “was in error and demanded [Consumer Reports] return or destroy the information. In the interest of consumer safety, we declined.”

Buerkle, the commission’s acting chairman, declined to comment on the 6(b) rule, noting that it was mandated by Congress. “I respect the roles of the different branches of government,” Buerkle said in a statement. “They legislate, we execute.”

The agency’s efforts to claw back the information have been mostly successful. In her April 29 letter to Senators Roger Wicker (R-Mississippi) chairman of Senate Committee on Commerce, Science and Transportation, and Jerry Moran (R-Kansas), who chairs the consumer protection subcommittee, Buerkle said that 14 of the 29 recipients had agreed to destroy or return the information. (Wicker and Moran did not respond to requests for comment.)

More of the recipients have fallen into line since. But some individuals have refused. Curt Freedman, an engineer in Massachusetts, said the CPSC general counsel’s office has repeatedly contacted him about purging the information.

“There were no limitations when they sent it,” said Freedman, who had received data on accidental fires sparked by sunlight streaming through a special type of window. “Now they’re placing controls on it.”

Freedman said he had already shared information with several people, including a client. He said that when he explained this to an agency official, she said she’d mark him down as uncooperative.

Another recipient who asked to not be named said he was asked to destroy information he had never requested or received. To placate the agency, he said he played along and signed a letter stating his agreement.

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Four Whirlpool Corp. employees were also among the 29 recipients listed in Buerkle’s letter. A spokesman for the company told FairWarning that Whirlpool had complied with the order to destroy the information.

At a CPSC hearing on May 22, two Republican appointees – acting Chairman Buerkle and commissioner Dana Baiocco – clashed over Baiocco’s call to enlist the FBI or Justice Department to insure the independence of the investigation.

Republican appointee Peter A. Feldman supported Baiocco’s motion. But Buerkle – raising concern about the potential cost and interference with work of the inspector general – joined the two Democratic appointees, Kaye and Robert Adler, in voting it down.

Adler also argued it was unnecessary to enlist the Justice Department. “This is not Watergate; this is not Russian hacking of our files,” he said. “This was an innocent mistake made by some well-intentioned staff who have owned up to what they’ve done.”

At the hearing, Baiocco repeatedly voiced frustration. “The fact that I’m being fought every step of the way speaks highly to me,” she said. She did not respond to a request for comment.

FairWarning is a nonprofit news organization based in Southern California that focuses on public health, consumer and environmental issues.

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cpsa.gov

The U.S. Consumer Products Safety Administration ran a-foul a quirk in the law protecting industry from what would otherwise be public information.